Congress Should Be in No Rush To Renew FISA’s Section 702 Surveillance Powers

Speaking on Fox News Sunday, Department of Homeland Security Secretary Markwayne Mullin said the terrorism threat level is “the highest it’s ever been” as he blamed Democrats in Congress for failing to renew Section 702 of the Foreign Intelligence Surveillance Act (FISA) after a brief extension of life granted in April expired. He conceded there are other “ways that we can get to what we need to do, but it makes it significantly more difficult. We can cut through a lot of the bureaucracy with 702 and go after the terrorists that are trying to attack us every single day.”

But Republicans control both houses of Congress. While some political brinksmanship is in play over the choice of a new Director of National Intelligence to replace Tulsi Gabbard, so are continuing bipartisan concerns about the intrusiveness of Section 702, which lawmakers must periodically reauthorize.

As the Electronic Frontier Foundation (EFF) notes, “Section 702 is supposed to authorize collection of foreign intelligence from non-Americans located outside the United States….But as implemented, the law gives the intelligence community the ability to target foreign intelligence in ways that inherently and intentionally sweep in Americans’ communications.”

The U.S. government’s own Privacy and Civil Liberties Oversight Board (PCLOB) warned in a 2023 report that “Section 702 poses significant privacy and civil liberties risks” and that “although Section 702 targets can only be non-U.S. persons, through incidental collection the government acquires a substantial amount of U.S. persons’ communications as well.” (The PCLOB is currently in limbo pending the outcome of litigation over the Trump administration’s dismissal of Democratic members.)

These concerns lead many Americans to conclude that FISA’s Section 702 requires significant reform.

“Section 702 should require a warrant before the Federal Bureau of Investigation can look at digital communications collected from Americans,” insists EFF’s Matthew Guariglia. “If not, we should let the whole thing expire.”

Even President Donald Trump was a Section 702 skeptic until recently. In 2024, he demanded that Congress “KILL FISA, IT WAS ILLEGALLY USED AGAINST ME, AND MANY OTHERS” after reports that his campaign had been the subject of abusive government surveillance. Since returning to the White House, though, like his predecessors, he’s found a new appreciation for surveillance-state powers.

Just how common Section 702 surveillance powers are abused remains unknown. In 2024, the Cato Institute filed a Freedom of Information Act lawsuit seeking such information. Last week, Cato’s Patrick G. Eddington revealed that the government has yet to release any records, but the FBI let slip in court documents that “39,650 potentially responsive pages” exist regarding noncompliance with surveillance safeguards. The FBI plans to release the first 128 pages in August.

“Congress is being asked to extend, without a warrant requirement, a surveillance program whose compliance record cannot be independently verified, whose oversight bodies have been deliberately disabled, and whose custodians have shown a personal willingness to turn its tools on the press,” Eddington separately added.

Why is the government dragging its feet on releasing data? Well, the documents might reveal inconvenient facts.

“Last year there was a dramatic spike in ‘sensitive’ warrantless searches, which involve looking for and reading the communications of American journalists and American political and religious organizations,” Sen. Ron Wyden (D–Ore.) cautioned in an April statement about his desire for Section 702 reform. “The FBI refused to explain why these searches more than tripled.”

As a Democrat, Wyden’s concerns focus on abuses by the current Trump administration. But his comments echo those of Sen. Rand Paul, (R–Ky.). Paul warned of surveillance excesses by U.S. Special Counsel Jack Smith, who investigated Republicans for the Biden administration.

“Jack Smith’s actions should serve as a stark reminder that Section 702 of the Foreign Intelligence Surveillance Act, the much abused government authority to conduct mass warrantless surveillance, will sunset this upcoming April,” Paul warned in March. “My Fourth Amendment Restoration and Protection Act is the only way to prevent a future Jack Smith from abusing surveillance power.”

Paul and Wyden have joined together over the years to improve guardrails on Section 702 surveillance.

In the House, Rep. Andy Biggs (R–Az.), with six cosponsors, introduced legislation this spring to strengthen warrant requirements, forbid government agencies to use private parties to bypass surveillance restrictions, and increase transparency regarding the court that authorizes FISA surveillance.

“The Fourth Amendment is clear: the government must obtain a warrant before searching Americans’ communications or personal data,” commented Biggs in March. “My legislation restores that fundamental protection and ensures that federal agencies cannot evade constitutional limits by buying Americans’ private information from data brokers.”

Under pressure, Biggs later backed off his initially strong Fourth Amendment position.

So, the current impasse leading to failure to renew Section 702 should come as no surprise. Privacy advocates and lawmakers from both major parties have spent years objecting to the ease with which an intelligence tool intended for spying on foreigners is turned on Americans. They’ve also, over those years, offered legislation that reform, to one degree or another, the surveillance powers authorized under FISA’s Section 702. There’s no excuse for anybody to be surprised by the current situation.

Even aside from the need for improved safeguards, there’s no reason to mourn the law’s lapse.

EFF’s Guariglia notes that ongoing Section 702 surveillance operations can continue under annual certifications, allowing more time for debate and reform. The federal government also has other authorities for conducting overseas surveillance, “namely 12333, a shadowy executive order from the 1980s that gives the U.S. government nearly unlimited power to spy on people overseas.” That’s another area that deserves scrutiny and potential reform.

Cato’s Eddington emphasizes that Section 702 doesn’t sunset alone, but along with all of Title VII of FISA: “Title VII contains more than the 702 program. It also contains authorities that the government uses to target Americans who are located abroad.”

That means there should be no rush to renew the government’s surveillance powers. Federal snoops already have plenty of toys with which to play. It’s long past time to open their activities to scrutiny and reform.